Lawsuits Mount for Lasik

Sandy Keller had simply wanted to correct her nearsightedness and stop wearing contact lenses when she had laser eye surgery in September 1999. Instead, she ended up suing her surgeon and optometrist, claiming that a botched surgery left her with damage so severe she may eventually need corneal transplants.

The case was settled for $260,000 this last fall. “But no amount of money is going to fix this,” says the 42-year-old Torrance woman, who now uses an arsenal of medications in her eyes just to get through the day.

Patients unhappy with the results of Lasik surgery are increasingly suing doctors and clinics for compensation, complaining that the procedure actually worsened their vision and, in the most extreme cases, left them legally blind.

The settlements are encouraging attorneys to pursue additional cases, even as they shed light on the procedure’s risks. Five recent lawsuits generated judgments in the million-dollar range, and at least 200 other cases are in the pipeline, according to Washington, D.C., attorney Aaron M. Levine, chairman of the American Trial Lawyers Assn.’s Lasik litigation group.

A Buffalo, N.Y., man, for instance, won a $1.2-million verdict against the doctor and center where he had Lasik surgery after his eye was lacerated so badly that he is now virtually blind without corrective lenses. And a Kentucky jury awarded a 38-year-old woman a record $1.7 million after four laser surgeries left her legally blind in her left eye.

Lasik, now the most common elective surgery in the United States, is a $2.4-billion-a-year industry, according to Market Scope, a St. Louis-based newsletter that tracks the eye surgery business. More than 4.5 million Americans have had their vision corrected with lasers since 1996.

Several factors have fueled the upswing in the number of lawsuits. First, there’s always a time lag between when a procedure becomes popular and when problems emerge. Lasik, for example, didn’t become widely available until the late ‘90s. Lawyers were reluctant to take the cases because they weren’t knowledgeable about the surgery and because it’s difficult to prove damages when there is no objective test to verify a patient’s complaints. “How do you prove your vision’s worse or you’re getting spots in your eyes?” says Paul J. Martinek, editor of Lawyers Weekly USA in Boston.

It also takes time for these claims to wend their way through the legal system. But the recent judgments have showed that these cases are winnable, and lawyers have come up to speed on the potential complications, which has paved the way for more lawsuits. “There’s now a definite momentum,” says Levine, who adds that he receives at least one call a week from an unhappy Lasik patient.

But the lawsuits come at a time when the complication rate is actually going down, doctors and industry observers say. The tools used to perform Lasik have been improved, doctors have become more experienced, and they’re better at identifying which patients don’t do well. People with thin corneal tissue, dry eyes, misshapen eyeballs (astigmatism) or pupils that are large when dilated, for example, are not good Lasik candidates.

“We’ve learned so much in the five years we’ve been doing this,” says Dr. Roy S. Rubinfeld, an ophthalmologist in Chevy Chase, Md. Still, he estimates that about one-quarter of his practice consists of patients with Lasik complications.

Anywhere from 5% to 15% of Lasik patients need a second surgery to get their vision closer to 20/20, and up to 5% of patients find that their best corrected vision--with glasses or contact lenses--is actually worse than before the surgery, according to the Food and Drug Administration.

Serious complications, which include chronically dry eyes, loss of night vision, seeing double images or halos, fluctuating vision, severe headaches, an inability to distinguish objects in dim light and sensitivity to intense glare, range from 0.5% to 1.5%. With more than a million people having this done each year, that translates to 5,000 to 15,000 people annually whose vision is seriously impaired by an elective procedure.

“The number of people with long-standing complications could populate a small city,” says Ron Link, a former firefighter whose eyes were damaged by laser surgery and who now operates a Web site (www.surgicaleyes.org) for people with Lasik complications. “These people often have to radically alter their lifestyles. Anything a person in civilized society takes for granted, like going to the movies, candlelight dinners, even just driving to the grocery store, can be impossible to do.”

Lasik, which is a two-step procedure, takes about 10 minutes to perform and can be done in a doctor’s office under local anesthesia. First, a thin flap on the outer layer of the cornea is peeled back. Then a laser is used to make a neat incision in the cornea.

Doctors have long known that cutting the cornea changes its shape. And the shape of the cornea determines where light hits the retina, the light-sensing cells in the back of the eye that control how clearly the eye sees.

Generally, mistakes fall into three groups: errors in programming the laser, which can result in overcorrection or astigmatism; performing surgery on poor candidates; and failure or delay in diagnosing postoperative complications. “Almost any error you can imagine someone somewhere has made,” says Dr. Robert K. Maloney, an eye surgeon and director of the Maloney-Seibel Vision Institute in Los Angeles

Unfortunately, says attorney Levine, “people are led to believe this is no more complicated than getting a tooth pulled.” Glenn Hagele, executive director of the Council for Refractive Surgery Quality Assurance, a consumer watchdog group in Sacramento, says consumers need to be cautious and informed.

“This procedure offers convenience, but there is some level of risk,” he says. “People need to be aware of the possible consequences before they consent to go under the knife.”